Steve April 13, 2021
are-states-really-abolishing-qualified-immunity-for-cops?-not-exactly.

According to the news, New Mexico supposedly abolished qualified immunity last week. Axios reported that Governor Michelle Lujan Grisham signed a bill that “eliminates a legal defense known as qualified immunity, making it easier to sue government employees, including police officers, for civil rights violations.” Fox News claimed that she had “signed a law Wednesday eliminating qualified immunity for law enforcement.” More than a few local news outlets also described the law as ending or effectively ending qualified immunity in New Mexico.

In theory, this is part of a trend. Colorado was the first state in the country to purportedly abolish qualified immunity with a landmark police-reform law last June. Connecticut claimed to have followed suit soon thereafter. Last month, the New York City Council even said it abolished qualified immunity in its jurisdiction. News organizations, state lawmakers, and even some legal groups all described the moves as ending or abolishing qualified immunity.

There is just one slight hiccup. New Mexico didn’t actually abolish qualified immunity. Nor did Colorado. Nor did Connecticut. Nor did New York City. I point this out not to dismiss the significance of the laws that some of these states actually passed. Indeed, some of them are actually more interesting than a straightforward abolition of qualified immunity. But when discussing how to write laws to curtail police abuses, precision is more important than ever. These reports, which greatly exaggerate the demise of qualified immunity, manage to simultaneously misdirect readers and give short shrift to what lawmakers in these jurisdictions are actually doing.

What is qualified immunity? Let’s say you want to sue a government official because they violated your rights. The most common vehicle for this is Section 1983, a provision in federal law that allows people to file lawsuits in federal court against state and local officials who violate federal constitutional rights. If a local police officer breaks into your home without a warrant, steals your microwave, and rifles through your refrigerator, you could sue them in federal court for violating the Fourth Amendment’s ban on warrantless searches and seizures through Section 1983.

There’s a catch, however. Thanks to a series of Supreme Court rulings over the last few decades, that officer could try to dismiss your lawsuit by claiming he had qualified immunity at the time. He could argue that taking your microwave didn’t violate a “clearly established” constitutional right. Maybe that issue never came up before the courts before because no police officer had previously been sued for doing it. If that’s the case, a judge could rule in his favor and allow him to avoid any civil consequences for his actions. To make matters worse, a judge can reach that conclusion without actually determining whether he violated your rights, all but giving a blank check to future police officers to do the same thing to someone else.

My example was slightly fanciful for illustrative purposes. But federal judges have nonetheless found that qualified immunity can apply in disturbing circumstances. In one case, an Idaho woman gave officers permission to search her house for her ex-boyfriend and then rushed off to take her child to school. The officers then blasted holes in her empty house with shotguns and tear-gas grenades for the next few hours, rendering the home uninhabitable, and then received immunity when the woman sued them. In another case, the Ninth Circuit Court of Appeals ruled it wasn’t a “clearly established” violation of the Fourth Amendment when an officer allegedly stole a rare coin collection during a search.

As you can imagine, this approach to qualified immunity has drawn widespread criticism in recent years. Legal scholars from the left, right, and elsewhere have argued that qualified immunity, at least in its current state, is unmoored from precedent and irreconcilable with the Constitution. Federal judges in lower courts, most notably Judge Don Willett in Texas, have raised questions about the scope and nature of qualified immunity even while they struggle to apply it. Justices Clarence Thomas and Sonia Sotomayor have publicly suggested that the Supreme Court should revisit the matter. And after the killing of George Floyd last year reignited debates about policing in America, state lawmakers rushed to find a way to take action.

I don’t blame state lawmakers and governors for wanting to abolish qualified immunity. But that’s simply not what they did. Qualified immunity is a judicial doctrine that applies in federal courts when interpreting Section 1983, which is part of a federal law. State lawmakers in Colorado and New Mexico can no more tell federal judges how to interpret Section 1983 than they can tell the Vatican how to read the catechism. If you file a Section 1983 lawsuit against my microwave-stealing officer at the federal courthouse in Denver or Albuquerque tomorrow, that officer could still lawfully seek qualified immunity to defeat your complaint.

So what did these states actually pass into law? That’s where things get interesting. In Colorado and in New Mexico, state lawmakers essentially duplicated Section 1983’s basic premise—you can broadly sue government officials for violating your constitutional rights—into state law. A Coloradoan or a New Mexican (or a Connecticuter in some circumstances) whose microwave is stolen by our hypothetical police officer can now sue that officer in state court to seek redress. What’s more, those states explicitly forbid government officials from seeking qualified immunity in those legal battles.

“Wait a minute,” you might ask, “so they actually did get rid of qualified immunity?” Not really. Imagine if San Francisco officials had announced the completion of the Golden Gate Bridge by claiming they had demolished the Bay Bridge, which was also still intact. These state lawmakers may have found a way around qualified immunity, which could be laudable in its own right, but it’s still inaccurate to say that these states have “ended” or “abolished” qualified immunity at the federal level in any substantial way.

What makes this more than just a gripe about media coverage of legal issues—and some tall tales from state lawmakers—is that these laws might turn out to be more formidable than the states realized. At the federal level, Section 1983 can be a formidable tool for someone to vindicate their rights. The Supreme Court hears Section 1983 cases so frequently that it’s unremarkable when they take one up. You’ve probably followed the progress of a Section 1983 case without even realizing. The plaintiffs in Obergefell v. Hodges, which found a right to marriage equality in the Fourteenth Amendment, began as a Section 1983 claim against various state laws and officials that refused to recognize same-sex marriages. If state courts prove receptive to expansive claims of violated rights under these laws, they could be a formidable tool for personal liberty at the state level as well.

It’s premature to assess whether any of these laws will be successful in curbing police abuses or otherwise live up to their full potential. But some of them already look less promising than others. The Colorado law only applies to “peace officers,” for example, while Section 1983 and the New Mexico law apply to almost every state or local official. Over at Reason, law professor Ilya Somin noted last August that the Connecticut law is riddled with loopholes, including a broad good-faith exemption and a clause that requires the state to pay out damages instead of the officer who was sued. So not only does the Connecticut law not do what everyone says it does, it also doesn’t do what it purports to do: make it easier for people to vindicate themselves in court when mistreated by cops.

If other states are passing otherwise-good laws here, does it really matter what they’re called? I think so. First, as the Connecticut bill shows, I worry that state lawmakers and law-enforcement groups will use fake qualified-immunity bans to stifle police reform efforts by channeling them towards less-than-meaningful changes. Second, and perhaps more importantly, I fear that if people think there’s a state-level solution to qualified immunity, they will put less time and energy behind an actual nationwide qualified-immunity bill. Last month, Massachusetts Representative Ayanna Pressley re-introduced a bill that would actually abolish it throughout the country. If police-reform advocates really want to get rid of qualified immunity, that’s the place to do it. Accept no substitutes.

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